Executive Power

How Much Process Is Due for Accused Terrorists?


Yesterday a federal judge said the Pentagon may proceed with its trial of Salim Hamdan, Osama bin Laden's former driver, despite his lawyers' argument that procedural protections for defendants appearing before military tribunals at Guantanamo Bay remain constitutionally inadequate. Among other things, they object to the admissibility of hearsay and of evidence obtained through what The New York Times diplomatically calls "coercive interrogation methods." They also argue, pretty plausibly, that prosecuting Hamdan for conspiracy and providing material support for terrorism, offenses that were not added to the list of crimes that could be tried by military courts until four years after he was captured, violates the Constitution's prohibition of ex post facto laws. But at least Hamdan, a Yemeni who was captured in Afghanistan in 2002 and has been held at Guantanamo since then, will get to raise these issues in federal court after he's convicted. (Is there any point in pretending he might not be convicted?) Not so Ali al-Marri, a legal U.S. resident from Qatar who was arrested in Peoria, where he was studying computer science, in December 2001. The government has no plans to prosecute al-Marri; it just wants to keep him locked up.

In June 2003, a month before al-Marri was scheduled to be tried on charges of credit card fraud and lying to the FBI, President Bush issued an order that described him as an Al Qaeda operative and transferred him to military custody. Since then he has been imprisoned at the Navy brig in Charleston, South Carolina. This week the U.S. Court of Appeals for the 4th Circuit agreed that  President Bush has the authority to classify people arrested in the U.S. as enemy combatants and detain them indefinitely. It reversed a contrary 2007 ruling by a 4th Circuit panel that said the government had to transfer al-Marri back to civilian custody, after which he could be tried for whatever crimes he may have committed. "The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention," the court said then, adding that such a power "would effectively undermine all of the freedoms guaranteed by the Constitution."

In this week's decision (PDF), by contrast, five members of the court said Congress implicitly authorized the military detention of suspected Al Qaeda members, including those arrested in the United States, when it approved the use of military force against the terrorist network and its Taliban allies. Therefore, "if the Government's allegations about al-Marri are true," his detention is legal. A different five-judge majority said that, assuming the other majority is right about the president's legal authority, al-Marri "has not been afforded sufficient process to challenge his designation as an enemy combatant." The government's case against him consisted of nothing but a 2004 declaration by an intelligence official asserting that al-Marri was an al-Qaeda "sleeper agent" who had agreed to "facilitate terrorist activities and explore disrupting this country's financial system through computer hacking."

Now the Supreme Court, which has said "due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisionmaker," will have to decide whether that right also applies to legal residents and exactly what it entails. Civil libertarians may not like the procedures that ultimately emerge from all this litigation. But at least the courts have definitively rejected the Bush administration's circular "enemy combatant" logic, whereby people accused of terrorist connections lose any right to challenge the accusation because terrorists don't deserve due process.

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  1. Since all the military lawyers with any honor walked away from the Guantanamo process in protest, yeah I agree that we can assume he will be convicted.

  2. “He’s guilty. I could tell you how I know, but then I’d have to keep you in solitary confinement in a military brig until the cessation of terror, so the terrorists can’t find out we’re trying to catch them.”

  3. It troubles me to see so much time and effort wasted on determining whether non-citizens have the same due process rights as citizens. The Constitution draws no distinction. It speaks of “the accused,” who could be anyone, citizen or not. The only problematic point comes from the fact that the Fourth Amendment speaks of “the right of the people to be secure…” And by “the people,” the Constitution is taken to mean “We the People”: Citizens (or, I suppose, legal residents who are in the process of becoming naturalized citizens). So is it that non-citizens, foreign tourists, etc., do NOT have the right to expect warrants for arrest, search, or seizure? That is certainly something that the courts should establish definitively.

    But most due process protections, including habeas corpus, apply to everyone. The question to be decided, it seems to me, is whether someone is subject to trial in a military court, as a prisoner of war, or in a civilian court, under terrorism laws as they existed prior to the contortion of such law after 9/11.

    Indefinite detention and trial in yet another separate judicial system of kangaroo courts is simply bogus. We should dispense with such things immediately as abhorrent to the Constitution and the American spirit, and waste no more time and energy on them. Dealing with them distracts citizens, legislators, and courts from keeping the government in general on the right track.

  4. The speech I would like to hear from both candidates:

    “My fellow Americans, this notion of the current administration, that the United States is somehow incapable of fairly judging the actions of terrorist suspects in a timely manner – some of whom have been held for nearly 7 years – violates all precepts of justice and fairness and is fundamentally at odds with our Constitution. It mirrors some of the historically most offensive things the U.S. Government has done, such as the internment of Japanese Americans during WWII. When I am elected President, this will not stand.”

    “The day of my swearing in, I will issue an executive order to direct the Dept of Defense and Justice to establish mechanisms so that every detainee will stand before a federal court or military tribunal – as is consistent with their status and charged offenses – within one year and that all trials shall be concluded before the end of my first term. Consistent with this order, the facility at Guantanamo Bay will be shutdown as soon as practicable after these initial hearings with detainees moved to either a Federal Prison facility or military brig as supports the trial process.”

    “This is not about being soft on terrorism, it is about America standing up for the principles we were founded upon. Our pledge of allegiance expresses this more clearly than I ever could in closing with those powerful and most important four words: ‘And Justice for All’.”

  5. It troubles me to see so much time and effort wasted on determining whether non-citizens have the same due process rights as citizens.

    I agree that’s been a red herring.

    In my mind, the question that has been glossed over/ignored, intentionally or no, is the degree to which habeas and other due process are/should be available to people taken into custody by the US military in a war-fighting environment.

    I continue to be very concerned about turning our soldiers into cops, just as I am very concerned about our cops turning into soldiers. The two roles are fundamentally different, and collapsing them into one and the same thing has been a disaster everywhere its been tried. We seem to be converging on it from both ends.

  6. “””So is it that non-citizens, foreign tourists, etc., do NOT have the right to expect warrants for arrest, search, or seizure? That is certainly something that the courts should establish definitively.”””

    I’m sure we’ve charged foreigners with crimes in the past, and I’d bet they received the same rights. I agree with rights of the accused.

    In reality, Bush and Co is making the same arugment that every tyrant and dictator has made in the past. Enemies of the state have no rights, and I get to decide who is an enemy of the state. What gets me is people claiming to believe in freedom and agree with Bush. You know, the one that love name calling.

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